The Terror Presidency: Law and Judgment Inside the Bush Administration

by Jack L. Goldsmith

A central player’s account of the clash between the rule of law and the necessity of defending America.

Jack Goldsmith’s duty as head of the Office of Legal Counsel was to advise President Bush on what he could and could not do . . . legally. Immediately after taking the job in October 2003, Goldsmith began to see that the work of his predecessors, whose opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, were deeply flawed.

Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. In The Terror Presidency he shows how Bush damaged his own presidency and compromised the ability of his successors to respond forcefully in times of crisis.

Genres: Politics, Nonfiction, Law, Terrorism, History, War, United States

288 pages, Paperback

First published September 10, 2007

About the author

Jack Landman Goldsmith III (born September 26, 1962) is a Harvard Law School professor who has written extensively in the field of international law, civil procedure, cyber law, and national security law. He has been "widely considered one of the brightest stars in the conservative legal firmament."

Goldsmith was born in 1962 in Memphis, Tennessee. His stepfather, Charles "Chuckie" O'Brien, is widely believed to have played a role in the disappearance of Jimmy Hoffa.[6] Goldsmith graduated from Pine Crest School in 1980.

He was a law professor at the University of Chicago when in 2002, he joined the Bush administration as legal adviser to the General Counsel of the Department of Defense. In October 2003 he was appointed as an United States Assistant Attorney General, leading the Office of Legal Counsel in the Department of Justice under Attorney General John Ashcroft and Deputy Attorney General James Comey. He resigned in July 2004. He wrote a book about his experiences there called The Terror Presidency (2007).

Goldsmith graduated from Washington & Lee University with a Bachelor of Arts summa cum laude in 1984. He earned a second B.A. with first class honours, from Oxford University, in 1986, a J.D. from Yale Law School, in 1989, an M.A. from Oxford (which is not a separate degree, but an upgrading of the BA), in 1991, and a diploma from the Hague Academy of International Law in 1992. He clerked for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit from 1989 to 1990, and for Justice Anthony Kennedy of the Supreme Court of the United States from 1990 to 1991.

He was a professor at the University of Virginia Law School before going to the University of Chicago Law School. He was working there in 2002 when he first joined the administration of President George W. Bush as a political appointee.

In 2007, Goldsmith published The Terror Presidency, a memoir about his work in the Bush administration and his thoughts on the legal opinions which were promulgated by the Department of Justice in the war on terror. His discussion covers the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trials of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. He is largely sympathetic to the concerns of the Bush administration's terrorism policies. He believed that fear of another attack drove the administration to its focus on the hard power of prerogative, rather than the soft power of persuasion. In the end, he believed the fear and concentration on hard power were counterproductive, both in the war on terror and in the extension of effective executive authority.

Reviews

[Tariq Alferis · Rating 3 out of 5]

.(لقد كانت تقديراتي سليمة في الماضي ، وهذا يعني انها كانت سليمة في المستقبل )
مقولة منسوبة لجورج بوش الإبن.

كان جاك جول سميث مديراً لمكتب الاستشارات القانونية كانت مهمة جاك جولد سميث تقديم المشورة إلى الرئيس بوش بشأن ما هو
‎مسموح وما هو غير مسموح من الناحية القانونية

‎كتاب يسرد أحداث وطرق تعامل إدارة جورج بوش لضربة الحادي عشر من سبتمبر‫..‬كان في بالي منذ سنوات أن إدارة بوش كانت غبية وصاحبة قرارات غبية وخاصة إعلان الحرب علي العراق، وكان في اعتقادي أن القرار يكون بيد جورج بوش وحده، ولكن خاب ظني لأن بوش ليس زعيم عربي أو ملك كلامه وأفعاله وحي يوحي‫..‬بل جورج بوش الابن لديه جيش من المحامين وأصحاب الخبرة القانونية لتقديم المشورة واكتشاف ثغرة في القوانين لتمكين رئيس من تعذيب العراقيين وغزو العراق وتجاوز قوانين جنيف‫…‬بالمختصر فإن مهمة جاك وأمثاله هو وضع الاطار القانوني والغطاء على الجيش والحكومة
‎الأمريكية‫..‬حتى في الحرب كُل شيء بالقانون ‫…‬عين الحسود فيها عود ياسي‫.‬

‎مذكرات محامي محافظ من رفض قانون رفع الحصانة المدنية على معتقلي العراق‫…‬كتاب جيد لشخص مُهتم بمعرفة قانونية الحرب على العراق‫.‬
.

[Pierre · Rating 3 out of 5]

I think this book is a good read because it offers great insight into the sick and twisted minds who are working behind the scenes in the Bush White House to promote an arch-conservative agenda.

However, this book reads like a giant apology for Jack Goldsmith's tenure at the Bush White House. Basically, Goldsmith has used this book to apologize and explain away how he embarrassed the White House after the Abu Gareb scandal by withdrawing a number of legal opinions which were the basis of the memos authorizing torture and disregarding the Geneva Convention.

The book is also an apology for Bush Administration policy during the "war on terror". On the one hand, Goldsmith seems to argue that it is reasonable that the White House wanted to expand its war time powers because of the fear of a terrorist attack but at the same time arguing that the White House over-reacted and expanded its power too far. Goldsmith is still an arch-conservative at heart, but believes that Bush overplayed his hand. What Goldsmith doesn't understand is that his conservative ideology is the problem.

For this book to have had 5 stars, Goldsmith would not just have to come to the realization that Bush's rationalizations for torture and eavesdropping were on legally unsecure footing, but that they were wrong because they were poor policy choices based on a total misunderstanding of the terrorist threat that the US faces.

[Annette · Rating 4 out of 5]

Have you ever been at a party and had the ear of about 8 or 9 people? They're all looking at you because they think you're smart because you know a lot of interesting data. And you confidently throw out a shocking number while holding your two-ice-cubed cranberry vodka and say "Did you know that eight hundred and eighty THOUSAND Iraqi citizens have been killed since the beginning of hostilities?" And everyone gasps in astonishment and disbelief at a) the hideousness of the number and b) your complete genius.

Only later do you find that your data was wrong. You googled it, and it was "only" eighty eight thousand dead Iraqi citizens. You're left at an impasse. Do you email the 8 or 9 people to tell them you were mistaken? Or do you allow them to continue under the mistaken beliefs which you sowed? I mean, how much harm can be caused by middle-class uberguilt?

I must do the former. I must eat crow. This book has fomented this impasse for me. Don't get me wrong, I still think that the Bush administration is a bumbling Keystone Cop operation which rewards mediocrity and failure while punishing competence. Yet I have a whole new appreciation for the obstacles they are up against with regards to: the desire to recreate the unitary executive practiced under Lincoln, FDR and other wartime presidents; applying international law to US law (not such a good idea...trust me!); immunity for CIA/FBI agents and other executive branch employees; investigations in a world with disposable cell phones and mandatory warrants for wiretaps; and yes...terrur & terrurism.

And the administration's over-reliance on secrecy has more than likely led to its abysmal popularity with the American people. If the administration did what FDR and Lincoln did...come completely clean with the American people in what they are trying to accomplish and the threats we face...I think a lot less people would be so pessimistic and wary.

While the book did read like an apologia, and I reserve the fifth star because the last chapter implied that one day history will compare Bush II to FDR and Lincoln, I rate this book highly because it challenged my preconceived notions about the administration.

[Jenny · Rating 3 out of 5]

A conservative lawyer's take on how corrupt things were when he worked at DOJ from 2003-2004. While he makes some good points, his insistence on comparing the Bush administration to the Lincoln and FDR administrations is gratuitous and annoying, if not flat out wrong.

[Anna · Rating 3 out of 5]

Better than Mayer's book on the same topic and scholarship is more nuanced and less sensational. Goldsmith wavers between criticism of the administration and feeling like it's his responsibility to make excuses for the administration as someone who was part of it for a short time.

[Leon Atterberry · Rating 4 out of 5]

I enjoyed this book. As you’ve seen, recently, I’ve become fixated on government and how it handles; manages; guards secrets.

This book talked about politics; the law and terrorism during the George W Bush Administration.

The author was a Bush lawyer who talks about various legal controversies in fighting terrorism.

[Joseph Stieb · Rating 4 out of 5]

Definitely a worthwhile book even though I don't much agree with the author's legal philosophy. An important book for understanding debates within the Bush administration about executive power and the fight against terrorism. Goldsmith is a conservative legal scholar who became Assistant AG at the Office of Legal Counsel or OLC, which is a highly important office in the executive branch. It basically has the job of writing neutral legal briefs when the executive asks if a certain policy is legal. During the early post 9/11 era, Goldsmith argues, the OLC under Bybee and Yoo offered sweeping legal powers to detain, interrogate (including torture, in my mind), surveil, and otherwise combat terrorism. In these opinions, Yoo in particular argued against applying pretty much any international legal standards to captured terrorist suspects, for "enhanced interrogation techniques" that violated international law an UCMJ, and for the idea that as commander-in-chief the executive is essentially unrestrained by Congress or the courts. The last idea is actually scariest: these lawyers, especially Cheney's right hand man David Addington, believed that Congress could do pretty much nothing to limit the President's actions if he determined that those actions were necessary for national security, in spite of clear sections of the Constitution that grant such authorities. They called this the "unitary executive," which I'd say is really "the imperial presidency."

One of the big trends of the Bush administration's foreign policy was a gradual mellowing and straightening out starting around 2004, and Goldsmith's time at the OLC fits right in with that. He argues that the early, expansive opinions stemmed mainly from A. Tremendous fear of a second attack, a constant barrage of intel reporting on terrorist threats, and a strong sense of responsibility to protect the nation. B. their legal philosophy of expanded executive power, as described above. Goldsmith sympathized with the first reason and a little bit with the second. He was a conservative who believed in a strong executive, especially in foreign policy, and he particularly disliked many international legal restraints on the president. Goldsmith also believed that the OLC need to provide clear, sound legal advice so that the executive branch, from the Oval Office to officers and agents in the field, would not have to fear prosecution later on for pushing the boundaries of the law in defending the nation.

Goldsmith pushed back on the radical expansion of executive power in several ways. He withdrew support for the "torture memos" that he believed violated the UCMJ and international law. He withdrew support for opinions that asserted that the executive could not be checked by the other branches as unconstitutional and imprudent. He ruled that the Geneva Conventions should apply to insurgents captured in Iraq, to the chagrin of the hardliners. He was only there for a year, but he started the legal pushback against the early post 911 legal radicals and helped put the administration on a more reasonable legal footing. The whole time, he fought against vicious, completely close-minded and self-righteous people like Addington, who basically thought the President was a king and thought any critics or dissenters were traitors.

I definitely disagree with a lot of Goldsmith's legal philosophy. I don't necessarily think it's a bad thing that people in the executive branch have the possibility of later prosecution in mind as they act in the field. They need clear legal parameters, but we also need accountability, which has not always been forthcoming regarding USFP. Goldsmith seems to believe that post-hoc prosecutions became a plague after Vietnam, but he doesn't cite any examples, and it's hard to think of that many people in the foreign policy world who have been held accountable for breaking US or international law abroad. He's right that the executive operated in a different media, public opinion, and legal environment after 9/11 (a far more restrictive one), but again, given what the CIA and the military were doing in Iran, Guatemala, Vietnam, etc, these restrictions were probably justified. Goldsmith was a more sensible thinker than Yoo, Addington, and Bybee about executive power in wartime, but I still think his ideas were too expansive.

However, the bigger problem with Goldsmith's legal analogies to expanded wartime powers in the Civil War or WWII is temporality itself. Yes, Lincoln and FDR dramatically expanded executive powers and probably violated the Constitution in several areas. Lincoln was certainly justified in doing so; FDR was more questionable because of the targeting of a racial group. However, both of those conflicts were conventional wars that could be expected to end and had a clear definition of victory. That is not the case in the GWOT. The enemy has been inflated to groups that didn't exist on 9/11, it's very hard to know when you have "won," it's geographically unbounded, and it isn't clear if it's even over today or when it would be over. Executive powers for fighting terrorism have not really been reduced, and we are three presidencies away from the Bush era. Goldsmith hints at this problem but has no answer to it, nor does he consider the problem of what happens when you hand this arsenal of executive power to a racist maniac like Trump. I think this is a major hole in his legal philosophy.

However, he makes a great argument about how the presidency can legitimize the use of power. He criticizes the Bush administration for 2 big things. 1. Claiming expansive executive power as a matter of principle rather than a necessary if regrettable step in wartime. 2. Their stubborn refusal to go to Congress to get things like military commissions approved. Goldsmith argued that going to Congress would open up more of a national conservation about the steps needed to defend the country from terrorism. This meant giving up the idea of an unchecked executive, but it would ultimately put counterterrorism on a stronger bipartisan footing. In a strategic sense, it would make the courts less likely to strike down assertion of executive power on detention, commissions, surveillance, etc because they would have the imprimatur of Congress. Goldsmith shows how Lincoln and FDR did this skillfully whereas the Bush administration flubbed it out of sheer pig-headedness. I think this is an important lesson in how to make foreign policy legitimate even if I don't agree with Goldsmith's views on the GWOT or executive power.

Good book for understanding conservative thinking on foreign policy and the Constitution as well as the Bush administration's legal troubles in the first 4 or 5 years after 9/11. Concise, clearly written, and pretty reasonable throughout.

[James · Rating 4 out of 5]

I liked this book. Even though I'm not a lawyer or a neocon or a friend of UChicago, I found much to admire in Goldsmith, in his presentation of his story, and in his honesty, indeed, heroism. Now i cannot abide by some of his conservative glossing over of the facts when it was convenient to him, such as in his treatment of the mentally incompetent and tortured terrorist Abu Zubaydah, but I can admire the courage it took to stand upto David Addington, Cheney's counsel and the White House's biggest bully, and the Bush administration on at least some matters of law. He calls John Yoo a friend and then demonstrate how faulty was the legal reasoning of his friend. He also points out some of the reasons why an administration might take this or that approach to handling the treatment of detainees after 9/11 that I in my righteousness had not considered. So the book made me think sometimes. His connection of the Bush admin behavior to the Lincoln and Roosevelt cases was enlightening only in suggesting how badly the Bush admin screwed up by NOT informing the Congress and nation of its intent to violate and stretch to their limits U.S. and international laws. While many left-leaners like me will find the comparisons overdone, I thought the comparisons made well the point that Bush led the nation poorly because he did not trust the nation to understand the dilemmas he faced and to make decisions together with him on what to do about these dilemmas. He thought little of our abilities, and a book like this helps me see how little we will think of his not just now but for a very long time.

[Jeff · Rating 3 out of 5]

Given that Mr. Goldsmith and I have radically different political views, it is difficult to write an objective review of his book. And while I believe at several points in the book Mr. Goldsmith avoided lying by telling have truths. The book is, in many respects, very apologetic. It also is, at 216 pages (233 with afterword) both brief and too long.

The majority of the book if filler. Each chapter reads like an attempt to "give props" to various friends in Republican politics. Only the final chapter and afterword really have any meat to them. The thesis of the book is that President Bush's excesses were all totally legal, though perhaps poor policy. But President Bush's attempt to expand the power of the Presidency for the legitimate purpose of safeguarding Americans was handled in such a unilateral and secretive way that it had the long term result of dishonoring the Presidency, making the public suspicious of it, and in fact weakening the Presidency.

Goldsmith's argument, though tediously stretched through six chapters when it would have been better as an essay in Newsweek, is a compelling one and of particular value to anyone who wants to be informed on the issue. I particularly recommend it for those people, like myself ideologically opposed to the Bush administration -- in polarized politics it is easy to demonize the other side and to forget that sometimes mistakes that were made with good intentions instead of evil ones.

[Greg · Rating 4 out of 5]

I like this book because it doesn't attempt to be a tell all political memoir. It's written with the detached, yet incisive eye of an academic, which Goldsmith is. It's interesting because he got burned pretty bad by the powers that be, yet he doesn't try to settle scores. Instead, he attempts to explain the importance of the Office of Legal Counsel in informing the legality of executive action, what kinds of pressures the office has historically faced, and how previous presidents, such as Lincoln and FDR, pushed the limits of the law far more responsibly in times of crisis than the Bush administration did. Angler and One Percent Doctrine are better for the page-turning recountings of heated bureaucratic battles. This book is far better for an understanding of what could have been done differently in the past, and what legal principles should guide us in times of crisis in the future.

[Daniel Elliott · Rating 3 out of 5]

Not super compelling. The kind of book to really convince you the emperor has no clothes in national security law. This guy is took a stand in the Bush OLC that things has gone to far and was ousted for it, but even where he thinks the lines should be drawn are ridiculously favorable to the president and don’t really seem to have any nice formal justification. The fact is simply that Congress doesn’t like stepping in and courts are certain not to, so the president kind of gets to do what they want, and pretending there is good positive law here is kind of a farce. Also, he lands some hard blows on the Bush admin for political hubris in letting bold lawyers define their policy and telling people who didn’t like it to suck it. That’s fair, but the point that terror policy shouldn’t be left to lawyers should probably extend to him, because his policy takes (admittedly, looking with hindsight) seem pretty blindered. This dude really thought the war on terror was a good and coherent idea.

[Ted Morgan · Rating 5 out of 5]

This book is an important reminder that unethical behavior at the highest level of our American government ruled at a critical moment. The narrative is actually well known but here given in one place by a critical and ethical observer. Even contrasted with the Orange Monster, not all our supposedly good presidents have deliberately avoided breaking both ethical guidelines and defined law. Our president wanted to break ethical barriers and found a professor of law to help him. We have not held them accountable.

What I most enjoyed about the account is that Professor Goldsmith was both conservative and hawkish. He was the legal counsel to the president and, thus, bound to provide sound and dispassionate legal advice or opinions. He did not have a prior disposition to become disenchanted with what President George W. Bush and his Vice-President did. He was cautious in his advice but finally had to do with ethical thinking even in a serious moment in our national history.

I do not think he is unfair to John Yoo but carefully frames the advice Yoo gave the president. The book is an odd mesh of memoir and legal opinion.

I first read this book several years ago but had forgotten it. It is a sad story though told straight;

[Neil H · Rating 5 out of 5]

A professor trained in the relevant expertise with the lofty, academic pedigree against the hard hitting concrete, dirty reality of politics. It could have been a lot less exciting if what he went through was for a longer period but because it's was condensed within less than a year, the drama, heartache was more palpable. How does POTUS exercise in the time of war and technological progress. Has the politics, legislation and constitution caught up with the science and technology that increasingly drives a whole new world of sabotage whores and death nuts? An engaging read of if the dry reach of law compliment the true reality of the groundwork of agents which fights and investigates daily on its citizens behalf and the engorged egos of the white house.

[Emmet Sullivan · Rating 4 out of 5]

You have to have a stomach for legalese to enjoy this, but I thought it was even-keeled for the most part even if it was somewhat self-defensive throughout. Concise, to the point, and focuses strictly on what the subtitle promises - a rarity in this type of book in my experience.

[B · Rating 3 out of 5]

A different, legalistic but enlightening perspective on familiar territory

[Keith Blackman]

Behind-the-scenes look at the Bush administration by the former head of the OLC.

[Jerome Otte · Rating 5 out of 5]

A dry but objective and interesting look at the legal issues and challenges that the Bush administration faced after 9/11.Goldsmith explains some of the administration's policy decisions and the inner workings of the White House Office of Legal Counsel. You can tell this was written by a lawyer, though...

Goldsmith stabs his old friend John Yoo in the back, vaguely implying that Yoo was a bad lawyer who made errors in his OLC memos, though Goldsmith doesn't say what. Just that he didn't like their "tone." Yoo recommended Goldsmith for his job in the first place. So for Goldsmith to air stylistic issues over legal memos in public feels petty, inasmuch as such things are supposed to be a joint activity in legal offices in any event. Whither honor and decency?

Instead of catering to political winds, Goldsmith might have explained better how law differs from policy. Law states general rules. How any general rule sorts out in particular circumstances must forever remain to some extent unpredictable. Policy is set by the policymakers. That can and should change with circumstances, though not too much, if one is taking account of a need for consistency. What better time to revise memos than a month or so after Abu Ghraib?

As of early June 2009 the NYT confirmed for the umpteenth time that the law of war remains just the same now, under Obama, as it ever was under Bush. Policy has shifted, but only slightly, even today. Yoo sketched the bounds of executive power in war as it was and always had been. Goldsmith states clearly that all interrogation techniques and policies that Yoo put forward were legally correct. He says George Tenet regarded Yoo's memos as crucial if America was to protect its warriors, spies and interrogators from politicized litigation antics.

So shortly after Abu Ghraib, government drones set about to modify memos for perceived "tone" problems. Forgive me while I suppress a yawn. Yoo and Addington are fingered as bad guys; nearly everyone else is praised to the skies. This part, about 95% of the book, is rich and persuasive. The mournful tut-tutting about the bad guys is too nonspecific to be of interest.

The executive has great power to act in war within the law as he reasonably sees fit. There is nothing novel or new about this. It is the law as all Presidents have assumed it throughout American history. Clinton ignored the 1974 War Powers Act and bombed Kosovo over Congress's objection. He was the first to authorize terrorist renditions in locales where torture is routine. FDR contravened many laws passed by Congress requiring neutrality in WWII. Bush never did anything close.

Some academics however argue that the executive is a subordinate rather than an equal branch of government. So far all they've done is intimidate those who want jobs or social acceptance in the legal academy. Dirty bomber Padilla sued John Yoo, courtesy of the Yale Law Clinic, claiming this book in support as pure harassment, apparently not reading further than its jacket and press release. Nothing came of that, nor will it.

The author nevertheless claims to be a scholar whose higher wisdom and morals forced him to correct all Yoo's sad, bad work, a pose that is quite annoying if one knows the people being smeared in his book, and makes one suspect the author's basic integrity. Qualms coming right after Abu Ghraib is perfectly natural, as is Goldsmith's fuzziness on what really was wrong with the memos. Goldsmith also says a few times in the book that Yoo's views were, and continue to be, respectable legal opinion, that Yoo has openly defended with eloquence. Evidently the author just wants to have it all ways with all markets. This mars the book.

David Addington plays the standard role of Rasputin. He said something snarky, once, about FISA and that is set forward to prove that he is a bad man. Goldsmith himself winds up doing no actual memo revising. After a mere 9 months at OLC, he shoves on to greener pastures at Harvard. Publish or perish! OLC colleague Dan Levin followed up to do all the actual work.

In fact, it wasn't Goldsmith at all but a fellow named Philbin who had first said, uh, since it was now 2004, not 2002, and the immediate 9/11 emergency was past, maybe we ought to look over those old memos and make changes. Goldsmith heartily concurs. Was it all so important after all? Well, it was after Abu Ghraib erupts. No more lah dee dah in that office. Broad presidential authorizations to fight terror...broadly?...Whoops! Just think of the wild new vicarious liability theories lefty academicians and ACLUers must be hatching. Intensive CYA, one of government's most critical tasks, ensues.

This is your classic political farce in the tone of "more in sorrow, than in anger" coupled, under the surface, with excellent pro-Bush administration policy arguments. The book's facts stated as such are interesting and useful to have--now that the political attitudes of this book's day are past.

[Maduck831 · Rating 3 out of 5]

“When OLC writes legal opinions supporting broad presidential authority in these contexts – as OLCs of both parties have consistently done – they cite executive branch precedents (including Attorney General and OLC opinions) as often as court opinions. These executive branch precedents are “law” for the executive branch even though they are never scrutinized or approved by courts.” (36) “by a tie 213-213 vote, to authorize them. Kosovo was “the first time in our history that a president waged war in the face of a direction congressional refusal to authorize the war,” as Adler noted. It also marked the first and only time that a president exceeded the limitations on the 1973 War Powers Act.” (37) [Francis Biddle} “I do not think he was much concerned with the gravity or implications of this step,” Biddle later said. Roosevelt acted in the belief “that rights should yield to the necessities of war.” (44) [“The Anarchist Fighters”] “Demands immediately arose among members of Congress for swift justice to the saboteurs – for the death penalty if the law permits it,” reported the Washington Post, the public favored death for the saboteurs by a 10 – 1 margin.” (50) “The country gasped a sigh of relief. “To handle [the saboteurs] in the civil courts would be to help Hitler immensely, and that would be intolerable,” wrote the Washington Post. “We cannot afford to give our enemy, in our present pass, the slightest assistance.” (52) “He (Suskind) attributes its influence to Vice President Cheney’s November 2001 decree to the CIA that low – probability threats must be treated like a certainty.” (75) “In response to the secession crisis that began when Confederate forces fired on Fort Sumter, Lincoln raised armies and borrowed money on the credit of the United States, both powers that the Constitution gave to Congress…” (82) “When they hear a government lawyer talking about shades of grey and degrees of risky, they understandably hesitate, especially when criminal laws are in play.” (93) “The first branch of government, Yoo argued without any citation of authority…” (98) “No one (including the Supreme Court) complained when Roosevelt used his military powers to capture, try, and execute the Nazi saboteurs caught in civilian clothes in the United States during World War II, even though one of them, Herber Haupt, was an American citizen.” (117-118) (this is when he loses me a bit, he is essentially comparing al Qaeda to Nazis and I don’t think that is a fair comparison…I see what he is trying to get at (FDR is revered now and he did what Bush did!) but don’t buy it, if he takes this road, he needs to explain why al Qaeda and Nazis are similar…a much harder stance to take) “Addington once expressed his general attitude toward accommodation when he said, “We’re going to push and push until some larger force makes us stop.” (126) [Robert Kagan’s essay “Power and Weakness,” June 2002)] [The Military Commissions Act of 2006] [“Military Interrogation of Alien Unlawful Combatants Held Outside the United States” – John Yoo) [Department of Defense Working Group] [August 2002 interrogation opinion] “In light of all I had been through and done, I did not see how I could get that faith back. And so I quit.” (163) (he also doesn’t accomplish the “tasks” he set out to do and he doesn’t explain why) “Before I arrived at OLC, Gonzales made it a practice to limit readership controversial legal opinions to a very small group of lawyers.” (167) [Attorney General Edward Bates] [Newsweek story on Goldsmith] “Public sentiment is everything,” Abraham Lincoln once said. “With public sentiment nothing can fail; without it, nothing can succeed.” (193) [“Arsenal of Democracy” fireside chats, FDR] “He has instead relied on one the hard power of prerogative. And he has seen his hard power diminished in many ways because he has filed to take the softer aspects of power seriously.” (215)

[Tom Meyer · Rating 4 out of 5]

Fascinating must-read for anyone interested in current events, the War on Terror, or civil liberties.

The book is partly a narrative of Goldsmith's own experience in the Bush administration and partly a (brief) legal history of presidential powers relating to war and intelligence. A fairly hawkish conservative legal scholar, joined the Bush Administration as the head of the Office of Legal Council in 2003; essentially, the president's head legal adviser. While there, he discovered John Yoo's famous Terror Memos and was horrified by their shoddy research and overreach. Goldsmith subsequently ordered them retracted and issued a narrower opinion of what the president could and could not do to terrorists. This, I was expecting.

What I was not expecting was Goldsmith's history lessons. The intelligence community, he argues, is caught in a horrible cycle of excesses. When something awful happens -- a 9/11, for instance -- Americans demand that they be publicly berated for failing, then given vastly greater powers to prevent a second disaster. Intelligence agencies then unvaryingly overreact and start doing all manner of things that are ugly, but keep us safe. Just as Americans' fear of another attack is beginning to subside, the ugly truths come out. Then, we berate the intelligence officials again for dishonoring us, and we strip them of all the powers we gave them, and then some. Before long, another attack happens and the whole cycle starts over. It's an arresting and tragic analysis.

His second lesson -- which forms the basis of his solution -- is that these cycles are exacerbated when the president makes these changes in secret, and mitigated when they are made publicly and with the assent of the other branches. "The president cannot avoid accountability for national security decisions," he says, "But he can spread the accountability, and thereby minimize the recriminations and other bad effects of the risk-taking that his job demands." This refusal to engage and to go-it-alone-Congress-be-damned approach, Goldsmith argues, was the first cause of all of the Bush administrations subsequent mistakes.

I can't recommend too this one too highly. And at 233 pages, it's very easy and quick reading.

[Colleen Clark · Rating 5 out of 5]

What interested me most in this book was a Bush administration insider's account of how badly the Justice Dept. went awry. Goldsmith went from being an assistant to the DOD lawyer Jim Haynes (Sept 2002-Sept 2003) to being head of the Office of Legal Counsel (OLC) in the Justice Dept. from Sept 03 to summer 04. While Goldsmith was generally on board with the Bush administration counterterrorism policies he ultimately resigned because the legal opinions written by John Yoo, whom he called a "friend," were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President." p 10

He has much to say about the power of Cheney's lawyer David Addington.
"Of probably a hundred meetings in Gonazales's office to discuss national security issues, I recall only one when Addington was not there." p 76

Also, as an aside, is this, particularly relevant in Feb 2010 as I write this, "...military commissions, which Ashcroft never liked." p 24.

Where else are you going find so much inside dope from an insider who is not blowing the whistle but is principled and independent-minded?

[Erica · Rating 4 out of 5]

This book totally comes together in chapter 6 and makes the legalese from the first chapters worth the effort. Understanding how the driver of so much executive office politics today is the issue of the relative power of the executive office, and the different perspectives on this, makes a lot of things make more sense. For those like me who suspect the current administration is plain and simple evil, this book adds a dimension of understanding.

One criticism I have is the absence of the author as a human being from the events he describes. Reading a whole chapter about the legal issues surrounding torture without a glimpse of the person considering the implications of what he does on other people is weird.

[Sarah · Rating 3 out of 5]

Goldsmith was a U Chicago Law Professor who went to work in the White House as legal counsel to the President. Goldsmith offers a very interesting view from within the White House. He argues that the current administration is functioning in the most legally restrictive environment of all times. Although he clearly did not agree with the President in all matters, Goldsmith seems to hold high regard for anyone who must make hard decisions to balance safety and legality. Goldsmith concludes that the President would, ironically, have more power than he currently has due to his aggressive, unapologetic attitude.

[Adam · Rating 3 out of 5]

Goldsmith headed the Office of Legal Counsel at the DOJ during the Bush Presidency. He ended up quitting not even a year into his job, mainly because he couldn't handle the pressure put on him to write opinions (legally binding) that supported the President's actions. It's a good read and gives insight into Bush's attempt to strengthen the "unitary executive." Goldsmith also does a good job contrasting Bush with other wartime Presidents like Lincoln and FDR -- they were great because they broke the law in a way that was inclusive and public; Bush was a failure because he tried to keep all power in the executive branch in secret.

Definitely recommended.

[marcali · Rating 5 out of 5]

Quite interesting perspective from a conservative former insider in the Office of Legal Counsel to the President. Besides revealing how the Bush presidency went wrong legally & politically, Goldsmith provides a nuanced study of the larger question in historical context: the scope of presidential power and how that scope interacts with other branches of government. Nice to have civil and intelligent discussion, even if disagree with aspects of his legal philosophy.

[James]

A useful book that examines the failures of the Bush administration in crafting a successful, legally and politically sustainable approach to the threat of global terrorism after 9/11. Goldsmith shows how both left and right have politicized and ignored the difficult and nuanced problems faced by a democracy trying to balance security and the rule of law.He also shows how the Bush administration allowed partisan loyalty to trump legal integrity and competence in the Justice Department.

[Heather]

Written by Jack Goldsmith, the former head of the Office of Legal Council. 'His job was to advise President Bush on what he could and could not do . . . legally. Immediately after taking the job in OCt 2003, Goldsmith began to see that the work of his predecessors, whose opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, were deeply flawed.' (Norton Reviews).

[Ryan · Rating 3 out of 5]

A lighter and quicker read then I was expecting. Rather than delve into legal substance the book suggests bureaucratic politics, a misguided view of the nature of the Presidency, and political blundering led to the preception that the Bush Administration's terror policies are legally flawed. Pretty good even if it wasn't what I expected.

[Corné · Rating 4 out of 5]

You know president G.W. Bush has a problem when his former, conservative Assistant Attorney General tears the counterterrorism legislation apart with sound legal arguments and descriptions like 'deeply flawed' and 'sloppily reasoned'. Obviously, this is basically about law, but very clearly written and equally interesting to nonlegal scholar.

[Will Hornbeck · Rating 3 out of 5]

If I saw this book in a Barnes and Noble or my local public library I'd probably skip over it: it smells like just another tell-all designed to settle scores. But after reading it, I'm very glad I didn't skip it. If you want insight into not just OLC but the entire sordid relationship between DOJ and the Bush White House at the height of the War on Terror, this book is your best bet.

[Rob Perschau · Rating 4 out of 5]

Fascinating analysis of the legal aspects of the war on terrorism. This book was ahead of its time in revealing the lengths the Bush administration went to make its war against terrorism appear to follow the law. The author, who headed the Administration's Office of Legal Counsel, didn't last long there when he attempted to issue correct a long series of erroneous legal opinions.